Unfair dismissal and employment lawyers in Villanueva de la Cañada

A dismissal is decided at two moments: the day the letter is handed to you, and the weeks that follow. What you sign, what you are paid and what you let go by in that time shapes everything else.

The time limit: twenty working days

The period for challenging a dismissal is twenty working days from the date it takes effect, and it is a limitation period that cannot be extended: it is not interrupted by informal complaints to the employer, nor by being in negotiation, nor by waiting to be paid the finiquito. What does suspend it is filing the papeleta de conciliación — the formal request for the compulsory conciliation hearing — with the relevant mediation service, in Madrid the SMAC (Servicio de Mediación, Arbitraje y Conciliación). That step has to be taken before any claim can be brought.

Before you sign anything

• You may sign to acknowledge receipt, but add «no conforme». Signing the letter proves you received it; signing it without reservation can be read as acceptance. No conforme means «not in agreement».
• The finiquito is not the compensation. The finiquito is the final settlement of what you have already earned — outstanding salary, untaken holiday, pro rata extra payments. Compensation for dismissal is a separate thing and is added to it.
• Be careful with settlement documents that include a waiver of claims. If the paper says you have nothing further to claim, you may be giving up the right to challenge the dismissal. Do not sign it without reading it or without taking advice.
• Keep everything: the dismissal letter, the payslips for the last twelve months, the contract, emails and messages with the employer, and the certificado de empresa — the employer’s certificate used to claim unemployment benefit.

The types of dismissal and what changes with each

Disciplinary dismissal

The employer alleges a serious and culpable breach by the employee (art. 54 ET, the Estatuto de los Trabajadores or Workers’ Statute) and pays no compensation. The letter must set out the facts and the date precisely: a generic letter is hard to sustain, because at the hearing the employer can only prove the facts it put in writing.

Objective dismissal

On economic, technical, organisational or production grounds, or for incapacity or failure to adapt (art. 52 ET). It requires a letter stating the ground, fifteen days’ notice and the compensation made available at the same time, at twenty days per year of service, up to the statutory cap. Defects in any of those requirements are grounds for challenge.

Verbal dismissal, or a disguised «non-renewal»

If you are told not to come back and no letter is given to you, there is still a dismissal, and it is usually unfair for want of the proper form. The difficulty is proving it: tell us as soon as you can.

End of a fixed-term contract

Not every ending of a contract is valid. If the fixed-term contract was wrongly justified or chained to others, the ending may be treated as a dismissal.

What the court can declare

• Procedente (fair): the dismissal stands. In a disciplinary dismissal, with no compensation.
• Improcedente (unfair): the employer chooses between reinstating you — with the wages lost in the meantime — and paying compensation of thirty-three days per year of service, capped at twenty-four months’ pay. For service before 12 February 2012 the rate of forty-five days applies, with caps of its own.
• Nulo (void): reinstatement is compulsory, with payment of the wages lost. This is the finding that applies where the dismissal infringes fundamental rights or falls within one of the situations the law specially protects.

Wage claims and termination for breach by the employer

Claims for unpaid wages

Unpaid salary, overtime, allowances not paid or shortfalls against the collective agreement. The general period for claiming is one year from the date the sum could have been demanded (art. 59 ET), considerably longer than for a dismissal, but it runs all the same.

Termination at the employee’s request (art. 50 ET)

Where the employer is in serious breach — non-payment or continued delay in paying wages, substantial changes that damage the employee’s dignity, or not being given actual work to do — the employee may ask the court to terminate the relationship with the compensation payable for unfair dismissal. It is a delicate procedure: as a general rule you have to keep working while it is being decided, except in the situations where the case law allows otherwise. Walking out before judgment is the most common way of losing this case.

Accident at work

If the dismissal or the sick leave follows an accident at work, there is a claim for damages on top of the employment claim. We handle that part from our separate site: personal injury and accident claims.